McDonagh et al v. Harrah's Las Vegas, Inc. et al

Filing 92

ORDER that a hearing on 87 Joint Motion for Preliminary Approval of ClassAction Settlement is set for 9/6/2016 at 10:00 a.m. in LV Courtroom 3C before Magistrate Judge Carl W. Hoffman. If the parties wish to file briefs on this issue, they must do so by 8/30/2016. Signed by Magistrate Judge Carl W. Hoffman on 8/11/2016. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NICOLE MCDONAGH, et al.,

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Plaintiffs,
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vs.
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HARRAH’S LAS VEGAS, INC., et al.,
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Defendants.
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__________________________________________)

Case No. 2:13-cv-01744-CWH
ORDER

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Presently before the court is the parties’ joint motion for preliminary approval of class

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action settlement (ECF No. 87), filed on February 1, 2016. On May 31, 2016, this matter was

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referred to the undersigned on the parties’ consent and upon special designation by United States

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District Judge Richard F. Boulware. (Order Referring Case to United States Magistrate Judge on

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Consent (ECF No. 90).)

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Under 28 U.S.C. § 636(c)(1), a magistrate judge may exercise jurisdiction over a case in

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which a district court has jurisdiction “[u]pon the consent of the parties” and upon special

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designation by the district court. “Consent—whether express or implied through conduct—is the

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touchstone of magistrate judge jurisdiction.” Allen v. Meyer, 755 F.3d 866, 868 (9th Cir. 2014)

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(quotation omitted); see also Anderson v. Woodcreek Venture, Ltd., 351 F.3d 911, 915 (9th Cir.

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2003) (stating that consent to a magistrate judge’s jurisdiction must be explicit, clear, voluntary and

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unambiguous); Roell v. Withrow, 538 U.S. 580, 590 (2003) (stating that a party impliedly consents

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to magistrate judge jurisdiction when “the litigant or counsel was made aware of the need for

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consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate

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Judge.”). Three circuit courts of appeals have held that a magistrate judge has jurisdiction over a

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class action if the named parties expressly consent, even though the unnamed class members have

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not consented. Day v. Persels & Assoc., 729 F.3d 1309, 1316 (11th Cir. 2013); Dewey v.

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Volkswagen Aktiengesellschaft, 681 F.3d 170, 181 (3d Cir. 2012); Williams v. Gen. Elec. Capital

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Auto Lease, Inc., 159 F.3d 266, 269 (7th Cir. 1998); see also Arnold v. Ariz. Dep’t of Public Safety,

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233 F.R.D. 537, 540 (D. Ariz. 2005) (finding that the named parties’ consent confers magistrate

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judge jurisdiction).

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Here, plaintiffs’ attorney signed the consent form on behalf of “Nicole McDonaugh, et al.”

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Based on the consent form, it is unclear to the court whether McDonaugh claims authority to

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consent to magistrate judge jurisdiction on behalf of the other named plantiff, David Grucello, as

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well as the putative unnamed class members. Additionally, the proposed notice to the class does

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not notify the class members that named plaintiff Nicole McDonaugh consented to a magistrate

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judge. See Day, 729 F.3d at 1336-38 (Pro, P., dissenting) (discussing notice considerations and

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practical implications related to a named class representative’s pre-certification consent to a

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magistrate judge). Given that a magistrate judge’s jurisdiction to enter final judgment under

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§ 636(c) is a jurisdictional question to be considered sua sponte, Allen, 755 F.3d at 867-68, the

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court will set a hearing to hear argument on whether § 636(c)(1)’s consent requirements have been

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satisfied in this case.

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IT IS THEREFORE ORDERED that a hearing is set for Tuesday, September 6, 2016, at

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10:00 a.m. in Courtroom 3C, Lloyd D. George United States Courthouse, 333 Las Vegas Boulevard

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South, Las Vegas, Nevada.

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IT IS FURTHER ORDERED that if the parties wish to file briefs on this issue, they must
do so by August 30, 2016.

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DATED: August 11, 2016

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______________________________________

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C.W. Hoffman, Jr.
United States Magistrate Judge

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